Friday, October 16, 2020

Huh, Guess Who's Been Writing About Section 230 (Stratton-Oakmont does a cameo)

 And if I'm reading this right he seems to favor tightening the "Yes we can have it both ways" loophole.

From the Supreme Court of the United States:

The SCOTUS Order List, October 13, 2020:
pg 12



The petition for a writ of certiorari is denied.  

Statement of JUSTICE THOMAS respecting the denial of certiorari.  

This petition asks us to interpret a provision commonly called §230, a federal law enacted in 1996 that gives Internet platforms immunity from some civil and criminal claims. 47 U. S. C. §230. 

When Congress enacted the statute, most of today’s major Internet platforms did not exist.And in the 24 years since, we have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.  

This case involves Enigma Software Group USA and Malwarebytes, two competitors that provide software to enable individuals to filter unwanted content, such as content posing security risks. Enigma sued Malwarebytes, alleging that Malwarebytes engaged in anticompetitive conduct by reconfiguring its products to make it difficult for consumers to download and use Enigma products. In its defense, Malwarebytes invoked a provision of §230 that states that a computer service provider cannot be held liable for providing tools “to restrict access to material” that it “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” §230(c)(2). The Ninth Circuit relied heavily on the “policy” and “purpose” of §230to conclude that immunity is unavailable when a plaintiff alleges anticompetitive conduct.

Statement of THOMAS, J.

The decision is one of the few where courts have relied on purpose and policy to deny immunity under §230. But the court’s decision to stress purpose and policy is familiar.Courts have long emphasized nontextual arguments when interpreting §230, leaving questionable precedent in their wake. I agree with the Court’s decision not to take up this case. I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.  


Enacted at the dawn of the dot-com era, §230 contains two subsections that protect computer service providers from some civil and criminal claims. The first is definitional. It states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” §230(c)(1). This provision ensures that a company (like an e-mail provider) can host and transmit third-party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content. The second subsection provides direct immunity from some civil liability. It states that no computer service provider “shall be held liable” for (A) good-faith acts to re-strict access to, or remove, certain types of objectionable content; or (B) giving consumers tools to filter the same types of content. §230(c)(2). This limited protection enables companies to create community guidelines and remove harmful content without worrying about legal reprisal. 

Congress enacted this statute against specific back-ground legal principles. See Stewart v. Dutra Constr. Co., 543 U. S. 481, 487 (2005) (interpreting a law by looking to the “backdrop against which Congress” acted). Traditionally, laws governing illegal content distinguished between publishers or speakers (like newspapers) and distributors(like newsstands and libraries). Publishers or speakers were subjected to a higher standard because they exercised editorial control. They could be strictly liable for transmit-ting illegal content. But distributors were different. They acted as a mere conduit without exercising editorial control, and they often transmitted far more content than they could be expected to review. Distributors were thus liable only when they knew (or constructively knew) that content was illegal. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, *3 (Sup. Ct. NY, May 24, 1995); Restatement (Second) of Torts §581 (1976); cf. Smith v. California, 361 U. S. 147, 153 (1959) (applying a similar principle  

The year before Congress enacted §230, one court blurred this distinction. An early Internet company was sued for failing to take down defamatory content posted by an unidentified commenter on a message board. The company contended that it merely distributed the defamatory statement. But the company had also held itself out as a family-friendly service provider that moderated and took down offensive content. The court determined that the company’s decision to exercise editorial control over some content “render[ed] it a publisher” even for content it merely distributed. Stratton Oakmont, 1995 WL 323710, *3–*4.  

Taken at face value, §230(c) alters the Stratton Oakmont rule in two respects. First, §230(c)(1) indicates that an Internet provider does not become the publisher of a piece of third-party content—and thus subjected to strict liability—simply by hosting or distributing that content. Second, §230(c)(2)(A) provides an additional degree of immunity when companies take down or restrict access to objectionable content, so long as the company acts in good faith. In short, the statute suggests that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain outside the defamation context). third-party content in good faith, it is protected by§230(c)(2)(A).This modest understanding is a far cry from what has prevailed in court. Adopting the too-common practice of reading extra immunity into statutes where it does not be-long, see Baxter v. Bracey, 590 U. S. —— (2020) (THOMAS, J., dissenting from denial of certiorari), courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms. E.g., 1 R. Smolla, Law of Defamation §4:86, p. 4–380 (2d ed. 2019) (“[C]ourts have ex-tended the immunity in §230 far beyond anything that plausibly could have been intended by Congress); accord,Rustad & Koenig, Rebooting Cybertort Law, 80 Wash. L.Rev. 335, 342–343 (2005) (similar). I address several areas of concern. A Courts have discarded the longstanding distinction be-tween “publisher” liability and “distributor” liability. Al-though the text of §230(c)(1) grants immunity only from “publisher” or “speaker” liability, the first appellate court to consider the statute held that it eliminates distributor liability too—that is, §230 confers immunity even when a company distributes content that it knows is illegal. Zeran v. America Online, Inc., 129 F. 3d 327, 331–334 (CA4 1997). In reaching this conclusion, the court stressed that permitting distributor liability “would defeat the two primary purposes of the statute,” namely, “immuniz[ing] service provid-ers” and encouraging “self regulation.” Id., at 331, 334. And subsequent decisions, citing Zeran, have adopted this holding as a categorical rule across all contexts. See, e.g., Universal Communication Systems, Inc. v. Lycos, Inc., 478 F. 3d 413, 420 (CA1 2007); Shiamili v. Real Estate Group of NY, Inc., 17 N. Y. 3d 281, 288–289, 952 N. E. 2d 1011, 1017 (2011); Doe v. Bates, 2006 WL 3813758, *18 (ED Tex., Dec. 27, 2006)....


Back in 2014 we happened to post on the case Justice Thomas is referring to: 

Our Only "Wolf of Wall Street" Post: Stratton Oakmont and the Internet